Attorney: Train engineer was 'in a daze'

Tim Fleischer reports from the Bronx.

December 4, 2013 3:26:13 PM PST

Eyewitness News

NEW YORK --

An engineer whose speeding train ran off the rails along a curve, killing four people and injuring more than 60, experienced a nod or "a daze" just before the wreck, and by the time he caught himself it was too late, his attorney said.

Attorney Jeffrey Chartier accompanied Rockefeller to his interview with National Transportation Safety Board investigators and described the account Rockefeller gave. Chartier said the engineer had an experience almost like road fatigue or the phenomenon sometimes called highway hypnosis. He couldn't say how long it lasted.

What Rockefeller remembers is "operating the train, coming to a section where the track was still clear - then, all of a sudden, feeling something was wrong and hitting the brakes," Chartier said. "... He felt something was not right, and he hit the brakes."

He called Rockefeller "a guy with a stellar record who, I believe, did nothing wrong."

"You've got a good guy and an accident," he said. "... A terrible accident is what it is."

Rockefeller "basically nodded," said Anthony Bottalico, leader of the rail employees union, relating what he said the engineer told him.

"He had the equivalent of what we all have when we drive a car," Bottalico said. "That is, you sometimes have a momentary nod or whatever that might be. How long that lasts, I can't answer that."

When he realized he had zoned-out, he "snapped-back," but it was too late, a source said.

Due to the press conference given by the Association of Commuter Rail Employees, the National Transportation Safety Board removed ACRE as a participant in its investigation into the derailment.

"While we value the technical expertise that groups like ACRE can provide during the course of an investigation, it is counterproductive when an organization breaches the party agreement and publically interprets or comments on investigation information," said NTSB Chairman Deborah A.P. Hersman. "Our rules exist to avoid the prospect of any party to an NTSB investigation offering its slant on the circumstances of the accident."

NTSB investigators said the train was going 82 mph as it entered a 30 mph turn Sunday morning and ran off the track killing 4 people and injuring dozens. The MTA announced Rockefeller is officially on unpaid leave.

Investigators looking into derailment have not found any evidence of brake trouble during the train's nine previous stops and no problems with track signals, National Transportation Safety Board member Earl Weener said at a Tuesday afternoon news conference. Weener said there were "no anomalies."

The NTSB has now completed its interview with Rockefeller, and sources say it left some investigators in tears over Rockefeller's profound grief for the families of the victims.

Meanwhile, Eyewitness News has obtained a scathing letter from the U.S. Department of Transportation to the MTA, condemning Metro-North for a series of accidents since May: a crash in Bridgeport, a track worker run over in West Haven, and a freight train derailment in July, not far from Sunday's Spuyten Duyvil crash.

In seven months, there have been five people killed, and 127 injured.

The letter says: "Regardless of the reasons, four serious accidents in less than seven months is simply unacceptable. Not only have some of these incidents had tragic and catastrophic consequences, they have also eroded the public's confidence in the safety of the railroad transportation system. Immediate corrective action is imperative."

The MTA is currently in a safety standdown, meaning it will review all of its safety procedures to make sure passengers on the trains are safe.

During an unannounced call-in to WNYC, New York Gov. Andrew Cuomo said emphatically that the investigation has now ruled out equipment failure as a cause, which leaves only human error as the likely cause.

"We know the basic facts, it was about the speed. And it was a truly excessive amount of speed. There was no equipment failure, no track problem. This is now a very serious situation," he said. The operator has rights, but there are all sorts of liability questions. And there will be all sorts of law enforcement agencies, as well as the MTA, that my guess will be taking a look at this situation and determining the liability and the culpability, if any.

"First and foremost, we want to make sure that the MTA riders are safe and this operator is not going be operating a train anytime soon, that I can assure you. But there will be a process and he has rights and other agencies may want to take a look at possible degrees of liability also. I think we should be deliberative in the process, vis-a-vis the operator. But I don't want to speculate as to what may or may not be the cause for what was excessive speed and reckless handling of the train," Cuomo said.

On the day of the crash, Rockefeller was on the second day of a five-day work week, reporting at 5:04 a.m. after a typical nine-hour shift the day before, Weener said.

"There's every indication that he would have had time to get full restorative sleep," he said.

Alcohol tests have come back negative. Blood test still pending, Weener said. Rockefeller's cell phone was not on at the time of the accident, he said.

Meanwhile, Metro-North promised almost 100 percent service on the Hudson Line Wednesday, after the 26,000 weekday riders of the affected line used shuttle buses and cars to get to work since the derailment.

About 150 people were on board when the train ran off the rails around 7:20 a.m. Sunday while rounding a bend where the Harlem and Hudson rivers meet in the Bronx.